JURISDICTION NOT AFFIRMED.

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agent: and, in Cutler v. Rea, the owners of a vessel promoted a libel against the consignee of the cargo, to recover the contributory share, due in general average, from such consignee for cargo after it had been delivered to him by the master. And in all of these various cases, the decision of the Supreme Court was adverse to the exercise of admiralty jurisdiction by the Federal

courts.

Subsequent decisions are generally in harmony with the doctrines so promulgated by the highest authority in the United States; and the doctrine still remains, unless where the cases have been necessarily qualified by subsequent decisions; or controlled by the legislation of Congress in reference to admiralty, and especially by the act of February 26, 1845.

In the latest volumes of Howard's, Black's and Wallace's Reports, are adjudged cases upon salvage, collision, and bottomry, many of which abound in learned discussions and valuable legal suggestions upon the questions decided.

These decisions and the act of 1845 further confirm the doctrine of this country in regard to the extent of jurisdiction in maritime matters. In England also, by certain acts, as chaps. 65 and 66 in 3 & 4 Vict. and chaps. 74 and 104, in 17 & 18 Vict. (all passed through the influence or at the instance of Sir Stephen Lushington), admiralty jurisdiction has been materially enlarged. Not to mention convoy, ransom, and mortgages, its criminal jurisdiction is broader and now embraces other subjects of a maritime nature, not heretofore cognizable in admiralty courts.

But the prominent distinction in England and the

1 But vide Dupont v. Vance, 19 How. 162.

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ITS EXTENT IN THE UNITED STATES.

United States is this: That whereas in England locality, tide-water, boundaries, and bridges still remain as formerly binding and decisive as a test of jurisdiction, here those tests have virtually, in regard to inland waters and county lines, ceased to exist. Not only is the English rule of infra corpus comitatus superseded by American decisions or abrogated by American legislation, but in the United States there is no necessity that a tort should occur within the ebb and flow of tide even in order to give the Federal courts jurisdiction over it in admiralty. These elements were inherent and vital in English admiralty; in the United States it is quite otherwise. The Federal courts now take cognizance of collisions on the Mississippi, above or below New Orleans; on the Missouri, where the water is salt or fresh, above or below the ebb and flow of tide; on the Yazoo, Elizabeth, Ohio, Alabama, Hudson, East and other rivers, Chesapeake, Delaware, Mobile, and other bays; and in short, on any of our great lakes or inland waters or riv ers navigable from the ocean. Indeed, the arm of this jurisdiction embraces, practically, all American waters, and a much wider circle of subjects than has been confided to the British admiralty courts, at any time, since the war of prohibitions ceased in that country.

Without, then, turning aside to enumerate the various cases in the circuit and district courts, not brought by appeal or writ of error before our highest tribunal, it may well be affirmed that, in the United States, admiralty jurisdiction extends to whatever subjects were within its cognizance prior to the American Revolution; have since been included within it by courts of authority previous to or under the Constitution; and by virtue of the Judiciary Act of 1789, or any other subsequent

EXTENDED BY LEGISLATION.

49

legislation of Congress. What is most marked, in our progress in this branch of maritime jurisprudence, is discoverable in the act of February 26, 1845, which is peculiarly distinctive of the United States. England still regards county lines, the ebb and flow of tide, and the first bridge of its rivers, the Thames, Humber, and others, as limiting its admiralty jurisdiction. In the United States, bridges, tides, and county lines are nothing. If a tort occur within our waters to a sailing or steam vessel, and the employment of such vessel is maritime, or essentially commercial, and the route or destination from one State or Territory to another State or Territory, the owners may lawfully seek redress in the Federal courts against the colliding or faulty vessel. There is here no prohibition. Since the act last referred to, there is almost unrestricted jurisdiction over such cases in admiralty.

That act provided that our district courts should "have, possess, and exercise the same jurisdiction in matters of contract and tort, arising in, upon, or concerning steamboats and other vessels of twenty tons and upwards, enrolled and licensed for the coasting trade, and at the time employed in business of commerce and navigation, between ports and places in different States and Territories, upon the lakes and navigable waters connecting said lakes, as is now possessed and exercised by the said courts in cases of the like steamboats and other vessels employed in navigation and commerce upon the high seas or tide waters, within the admiralty and maritime jurisdiction of the United States;" and it further provides for parties in suits so brought, the same remedies, forms of process, and modes of procedure as in admiralty; also making the United

50

OLD ACTS REPEALED IN ENGLAND.

States maritime law the rule of decision in such cases; saving to parties the right of trial by jury on any issue of fact, where either party shall require it; and "a concurrent remedy at common law, where it is competent to give it; and any concurrent remedy which may be given by the State laws, where such steamer or other vessel is employed in such business of commerce and navigation."

Thus a great advance was made in extending admiralty jurisdiction, when this act was passed; and grave doubts were suggested as to its expediency and constitutionality. Indeed, in 1850, 12 How. 443, in the case of The Genesee Chief, its constitutionality was directly questioned. But the Supreme Court adjudged the law to be constitutional, and subsequent proceedings in admiralty have been in accordance with that decision.

The gradual progress in the United States was duly observed in England. But a similar advance in Great Britain seemed impracticable, so long as the antiquated acts of Richard II. remained unrepealed. There were two of these parliamentry acts:

1st. That of 13 Richard II., ch. 5, as follows: "It is accorded and assented, that the admirals and their deputies shall not meddle, from thenceforth, of anything done within the realm, but only of a thing done upon the sea, as it hath been used in the time of the noble prince King Edward, grandfather of the king."

2d. 15 Richard II., ch. 3: "All contracts, pleas, and querelas, and all other things rising within the bodies of counties, as well by land as by water, and also wreck of the sea, shall be tried, etc., by the laws of the land, and not before nor by the admiral, nor his lieutenant in any wise."

IMPROVED LEGISLATION OF ENGLAND.

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By the act of Parliament 3 & 4 Vict., ch. 65, § 6, both of these ancient acts were repealed; and since 1841 the Dean of the Arches could perform the functions of an admiralty judge in his absence. By act 20 & 21 Vict., ch. 77, § 10, provision is made for the judge of probate to officiate when the office of admiralty judge may happen to be vacant; and since 1861, by 24 Vict., ch. 10, § 14, the Admiralty Court has been a court of record. Its powers seem now to be pretty precisely defined and greatly enlarged.

Mr. Justice McLean in The Magnolio, 20 How. 335, referring to the act 3 & 4 Vict., says, that "Statute has placed English admiralty substantially on the same footing that it is maintained in this country. To this remark, it is believed there are but two or three exceptions. Insurance, ransom, and surveys are believed to constitute the only exceptions. Whether an insurance is within the admiralty, has not been considered by this court."

Jurisdiction is the power to hear and determine a cause. 6 Pet. 691, United States v. Arredonte. In admiralty courts, the exercise of this power ought never to be declined, from considerations of policy, convenience, or in deference to others. The public and parties have some concern with the personal opinions as well as right to the judicial decrees of an admiralty judge. Ordinarily, he hears and decides without a jury. Without being possessed of legal jurisdiction, he cannot, even by agreement, be clothed with it. 20 How. 583. He should not, a fortiori, then refuse to exercise jurisdiction, where he may manifestly be clothed with it when acting without a jury.

A good judge of admiralty may and should become a